Construction Law Update: Liability of Texas Design Professionals Who Remain Engaged in Construction Observation and Contract Administration Work

The Maxfields (“Owners”) contracted with Black & Vernooy Architects (“Architects”) and Nash Builders, Inc. (“Builders”) for the design and construction of a vacation home.

Under the Owners’ contract with the Architects, the Architects were required to design the residence, to perform various post-design contract administration services, and to keep the Owners informed about the progress of the work—esp., to guard against defects and deficiencies in the work; and to determine if the residence was generally constructed in accordance with the contract documents.  However, the contract also included a provision indicating that the Architects were not responsible for the Builder’s means and methods and that the Architects would not be liable for the Builder’s failure to construct the building according to plans and specifications.

During the construction of the vacation home, the Builder’s framing subcontractor used nails to attach an elevated balcony to the side of the house rather than the bolts required by the contract documents.  While the Architects visited the site periodically, they failed to notice that the balcony was not constructed in accordance with plans and specifications.  And, consequently, the Architects never informed the Owners of this defect.  After the completion of the construction, the Owners had some friends over for a visit.  When the house-guests stepped out onto the balcony, the balcony collapsed.  One of the house-guests was rendered a paraplegic from the collapse.

The plaintiffs sued the Owners, the Builder and the Architects.  After settling with the Owner and the Builder, the plaintiffs proceeded to trial solely against the Architects.  The jury ultimately concluded that the Architects’ negligence caused the plaintiffs’ injuries, and that the Builder, its framing subcontractor, and the Architects were 70%, 20%, and 10% responsible, respectively.  On this basis, the trial court entered judgment for plaintiff for over $ 400,000 against the Architects.

On appeal, the Architects (with an amicus brief from the Texas Society of Architects and Texas Council of Engineering) argued that the Architects owed no duty to the plaintiff, and that the Architects’ contract with the owners did not impose a tort duty to detect the framing subcontractor’s defective construction.

On December 8, 2010, the Austin Court of Appeals issued an opinion disagreeing with the Architects’ position and affirming the lower court’s ruling.  In its opinion, the appeals court noted that that because the defects in question were “open and obvious” and because the Architects had reviewed photographs demonstrating the defects, there was more than a scintilla of evidence of the Architects’ negligence.

However, after an en banc rehearing, the Austin Court of Appeals withdrew its December 8, 2010 opinion and, on August 5, 2011, issued a new opinion holding that the Architects did not have a contractual or common-law duty to the house-guest plaintiff.

The withdrawn opinion can be found at:
The updated opinion can be found at
The legal citation for this opinion is:  Black + Vernooy Architects v. Smith, 03-09-00518-CV, 2011 WL 3435679 (Tex. App.—Austin Aug. 5, 2011, no. pet. h.)